in Re Saldana Minors

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re SALDANA, Minors. June 14, 2018
Nos. 340639; 340640
Van Buren Circuit Court
Family Division
LC No. 16-018602-NA
Before: MURRAY, C.J., and MARKEY and TUKEL, JJ.
PER CURIAM.
In Docket No. 340639, respondent-father appeals by right the order terminating his
parental rights to the minor children, LS and TS, under MCL 712A.19b(3)(b)(i) (parent’s act
caused physical injury or abuse); MCL 712A.19b(3)(g) (failure to provide proper care and
custody); MCL 712A.19b(3)(j) (reasonable likelihood of harm if returned);
MCL 712A.19b(3)(k)(iii) (severe physical abuse); MCL 712A.19b(3)(k)(iv) (serious impairment
of an organ or limb); and MCL 712A.19b(3)(k)(v) (life-threatening injury). In Docket No.
340640, respondent-mother appeals as of right the same order terminating her parental rights to
the minor children under MCL 712A.19b(3)(b)(ii) (failure to prevent physical injury or abuse);
MCL 712A.19b(3)(g) and MCL 712A.19b(3)(j). We affirm in both consolidated appeals.
At the time the children were removed, LS was just over one year old, and TS was three
months old. TS was born prematurely and spent several weeks in the neonatal intensive care unit
(NICU). TS had difficulties that were common in premature infants: bleeding in his brain
known as an intraventricular hemorrhage, trouble feeding, and respiratory issues. But all of the
issues had improved before he left the NICU. TS was released from the NICU to mother’s and
father’s care less than one month before removal.
On October 4, 2016, TS was taken to Bronson Lakeview Hospital under respiratory arrest
and was airlifted to Bronson Methodist Hospital because of his condition. Father was home
alone with TS because mother was at a doctor’s appointment with LS. TS had been fussy that
morning, so father prepared a bottle and propped it up with a blanket in TS’s bassinet before he
went back to the living room to watch a movie.
Mother and father both admitted to regularly engaging in bottle-propping, which they
knew they should not do because it put TS at risk for compromising his airways. TS was also
supposed to be wearing a sleep apnea monitor that would alert the parents if he stopped
breathing; they could then wiggle his feet or chin to wake him. Mother and father admitted that
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they stopped using the monitor about a week earlier without approval from a medical
professional.
When father later returned to the room where TS was sleeping, father found TS
unresponsive and turning blue. Father tried wiggling TS, but when he still did not respond,
father shook him in an attempt to revive him. Father performed rescue breaths, but when blood
came out of TS’s mouth or nose, father left to clean the blood off himself before returning to TS.
Father called mother and then called 911. Mother and father submitted to a drug screen that day,
and both tested positive for marijuana and cocaine.
Dr. Sarah Brown first examined TS on October 5, 2016, one day after the incident. TS
was critically ill at that time. He was not responding to touch or even painful stimuli. He was on
a ventilator that was breathing for him. He was on several medications to treat seizures and to
increase his blood pressure. There was no evidence in TS’s medical records that he had issues
with seizures in the NICU. The CT scan that was done after the incident showed bleeding over
both surfaces of the brain and in the area between the brain and the skull, which were very
different locations than the brain bleeding that TS experienced while he was in the NICU. The
bleeding also appeared to be of different ages and from at least two different incidents, likely
separated by at least a few days. T S’s subdural brain and retinal hemorrhaging were indicative
of a whiplash injury from head trauma.
When TS was first taken to the hospital, doctors found a left humerus fracture and several
rib fractures on the right side of his body that were in the early stages of healing. Once doctors
found injuries to TS’s ribs that could not have happened on the day of the incident, father
reported that he was in a minor car crash with both children about a week before TS was
admitted to the hospital. TS was not properly restrained in his car seat at the time, and father did
not report the accident to law enforcement.
Doctors typically perform follow-up x-rays on infants two weeks after an injury because
fractures are difficult to see in small babies, and it is easier to identify fractures from the healing
tissue. In TS’s follow-up x-rays, doctors noted additional rib fractures on the left side of his
body in a similar location to the right rib fractures and a fracture on the hip end of his right
femur.
The children were placed with their maternal grandparents. TS remained in the hospital
for more than four months before he was released in February 2017, but he was re-admitted to
the hospital in mid-April 2017 for pneumonia. Most of TS’s brain cells died from the incident
on October 4, 2016, as a result of severe and prolonged oxygen deprivation. A traumatic head
injury could precipitate the drop in oxygen, but the bottle-propping could also have contributed
to the injury. TS was continuously connected to a feeding tube and had a tracheostomy. Doctors
did not believe that he would ever be able to walk, talk, eat, or interact with others by himself.
Both grandparents and three maternal uncles went through weeks of training to learn to care for
TS’s special needs. Mother and father never went through the training, despite multiple
opportunities to do so.
Mother and father also failed to participate in parenting time on a regular basis. Although
LS did not have the same medical needs as TS, she was diagnosed with post-traumatic stress
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disorder (PTSD), and she received in-home mental health services when she was placed with her
grandparents. She exhibited severe behaviors after the visits that mother and father did attend,
including pulling out chunks of her hair. Once visits with mother and father stopped, her
negative behaviors stopped.
The trial court ordered that both mother’s and father’s parental rights be terminated after
finding that statutory grounds for termination had been established and that termination was in
the children’s best interests. Mother and father now appeal.
Father first argues on appeal that the trial court clearly erred in finding a statutory ground
for termination. The trial court found clear and convincing evidence of six separate statutory
grounds for termination of father’s parental rights—MCL 712A.19b(3)(b)(i), (g), (j), (k)(iii),
(k)(iv), and (k)(v). Yet father only challenges the trial court’s finding under MCL
712A.19b(3)(g) and (j). Because there is no error alleged in regard to the additional four
statutory grounds for termination and because the trial court need only find one ground proven
by clear and convincing evidence, MCL 712A.19b(3), we need not consider this issue on appeal.
See In re HRC, 286 Mich. App. 444, 461; 781 NW2d 105 (2009).
In his brief on appeal, respondent-father argues in passing that the trial court erred by not
adjourning or bifurcating the termination hearing to allow father to retain an expert and that he
was denied effective assistance of counsel when his trial counsel did not call witnesses or present
any experts to contradict petitioner’s evidence. But because father “failed to properly present
[these issues] in his statement of questions presented,” he has waived appellate review of them.
In re BKD, 246 Mich. App. 212, 218; 631 NW2d 353 (2001).
Finally, although father asserts that termination of his parental rights was not in the
children’s best interests, he completely omits any discussion of this claim in his appellate brief.
Our Supreme Court’s observations are apropos here:
It is not enough for an appellant in his brief simply to announce a position
or assert an error and then leave it up to this Court to discover and rationalize the
basis for his claims, or unravel and elaborate for him his arguments, and then
search for authority either to sustain or reject his position. The appellant himself
must first adequately prime the pump; only then does the appellate well begin to
flow. Failure to brief a question on appeal is tantamount to abandoning it.
[Mitcham v Detroit, 355 Mich. 182, 203; 94 NW2d 388 (1959).]
Father has abandoned this claim. Id.; see also Berger v Berger, 277 Mich. App. 700, 750, 712;
747 NW2d 336 (2008) (“A party abandons a claim when it fails to make a meaningful argument
in support of its position.”).
Mother argues on appeal that the trial court clearly erred in finding a statutory ground for
termination of her parental rights. “In order to terminate parental rights, the trial court must find
by clear and convincing evidence that at least one of the statutory grounds for termination in
MCL 712A.19b(3) has been met.” In re VanDalen, 293 Mich. App. 120, 139; 809 NW2d 412
(2011). “If the court finds that there are grounds for termination of parental rights and that
termination of parental rights is in the child’s best interests, the court shall order termination of
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parental rights and order that additional efforts for reunification of the child with the parent not
be made.” MCL 712A.19b(5). “This Court reviews for clear error the trial court’s ruling that a
statutory ground for termination has been established and its ruling that termination is in the
children’s best interests.” In re Hudson, 294 Mich. App. 261, 264; 817 NW2d 115 (2011). A
finding is clearly erroneous if, although there is evidence to support it, this Court is left with a
definite and firm conviction that a mistake has been made. Id.
The trial court found clear and convincing evidence to terminate mother’s parental rights
under MCL 712A.19b(3)(b)(ii), (g), and (j), which state in relevant part as follows:
(3) The court may terminate a parent’s parental rights to a child if the
court finds, by clear and convincing evidence, 1 or more of the following:
* * *
(b) The child or a sibling of the child has suffered physical injury or
physical or sexual abuse under 1 or more of the following circumstances:
* * *
(ii) The parent who had the opportunity to prevent the physical injury or
physical or sexual abuse failed to do so and the court finds that there is a
reasonable likelihood that the child will suffer injury or abuse in the foreseeable
future if placed in the parent’s home.
* * *
(g) The parent, without regard to intent, fails to provide proper care or
custody for the child and there is no reasonable expectation that the parent will be
able to provide proper care and custody within a reasonable time considering the
child’s age.
* * *
(j) There is a reasonable likelihood, based on the conduct or capacity of
the child’s parent, that the child will be harmed if he or she is returned to the
home of the parent.
If this Court concludes that the trial court did not clearly err in finding at least one statutory
ground for termination, it “need not consider the additional grounds upon which the trial court
based its decision.” In re HRC, 286 Mich. App. at 461.
In regard to the statutory ground for termination under § 19b(3)(b)(ii), mother claims that
there was no evidence to support any intentional act by her that caused injury to TS and that she
had no reason to suspect that father would abuse TS. In support of her claim, mother cites In re
LaFrance, 306 Mich. App. 713, 725; 858 NW2d 143 (2014), opining that this subsection does not
“apply merely to a negligent failure to respond to an accidental injury or naturally occurring
medical condition not caused by an ‘act’ of a parent or other adult.” Mother argues this means
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that (b)(ii) requires that she acted intentionally. But mother misreads In re LaFrance, which
simply holds that for (b)(ii) to apply to a parent who is not the abuser, that parent must fail to
protect the child from the other parent or nonparent adult’s abusive acts. Id.
In this case, the trial court found that father’s intentional acts caused TS’s brain
injuries—whether it was actual child abuse, getting into a car accident with the children while TS
was unrestrained, overly aggressive resuscitation techniques, or discontinuing use of the sleep
apnea monitor and then inappropriate bottle-propping. Moreover, there were additional fractures
and injuries of varying ages that Dr. Brown testified could not be explained as resulting from any
sort of accidental cause.
The trial court found that mother was aware that father had issues in caring for TS. She
herself was physically abused by father. There were injuries of multiple ages, so there was
physical injury or abuse before the incident that brought TS to the hospital. Mother also
admitted that she did not usually leave TS alone with father. Mother further knew that father had
stopped using the monitor and engaged in bottle-propping, in which she also engaged against
medical advice.
Furthermore, because mother had not addressed her substance abuse issues, continued to
defend father without showing concern for a cause of TS’s injuries, and did not engage in the
training to learn how to care for TS’s special needs, the trial court had ample evidence that there
was a reasonable likelihood that TS would suffer injury or abuse in the foreseeable future if
returned to mother. Thus, the trial court did not clearly err in finding a statutory ground for
termination under Subsection (b)(ii). See In re Hudson, 294 Mich. App. at 264.
In regard to the statutory ground for termination under Subsection (g), mother contends
that the trial court’s findings and conclusions on the forward-looking requirement (looking at
whether a parent will be able to provide proper care and custody within a reasonable time) were
replete with speculative opinions. In regard to Subsection (j), mother claims that the severest
allegations were against father, but she had no way of knowing that father would abuse TS
because there was no evidence that LS was abused.
The trial court, however, found that mother had failed to address TS’s or LS’s needs
when they were in her care. TS was only home for one month and sustained very serious injuries
that could only be a result of abuse or neglect. Moreover, mother had shown little interest in
learning to care for the children, particularly TS, so that she would be able to reunify with her
children in the foreseeable future. The trial court also noted that mother appeared to have issues
with substance abuse that had not yet been addressed.
In In re LaFrance, 306 Mich. App. at 729, this Court found that even though the
respondent-mother was not present and could not be deemed negligent for the incident that led to
the child’s special needs, termination was still appropriate under Subsections (g) and (j). The
respondent-mother admitted to drug use, engaged in several behaviors after giving birth that
raised concerns about her ability to care for a newborn, failed to attend medical appointments for
the child after he developed special needs, and failed to attend programs to educate herself about
the child’s condition. Id.
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Similarly, in this case, mother tested positive for marijuana and cocaine on the day that
TS was admitted to the hospital. Although she did not have any positive screens leading up to
the termination hearing, she missed 87 screens, 31 of which were after adjudication when drug
screening was mandated. At the time of the termination hearing, mother had not completed a
substance abuse assessment or participated in any substance abuse services. Mother admitted to
bottle-propping when she knew it was not safe and admitted to discontinuing use of the sleep
apnea monitor without approval by a medical professional, behaviors that raised concern about
her ability to care for her children. She was given multiple opportunities to learn to care for TS’s
special needs, but, at the time of the termination hearing, she had only learned how to suction
which is only a very small part of TS’s care needs. Although LS did not have the same physical
challenges as TS, she suffered from PTSD. Mother missed nearly half of her scheduled visits
with LS, which affected LS’s mental health and caused behavior issues. Given the above
evidence, the trial court did not clearly err in finding statutory grounds for termination under
Subsections (g) and (j). See In re Hudson, 294 Mich. App. at 264; In re LaFrance, 306 Mich. App.
at 729.
Like father, mother argues in passing that she was denied effective assistance of counsel
when her trial counsel did not call witnesses or present experts on her behalf. But as in father’s
case, mother has waived this claim by not properly presenting this issue in her statement of
questions on appeal. In re BKD, 246 Mich. App. at 218.
We affirm.
/s/ Christopher M. Murray
/s/ Jane E. Markey
/s/ Jonathan Tukel
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